Last Chance for the Public Option?

If it could turn back the clock, the Obama administration would probably go back to late November and undertake an elaborate war game on health-care reform. It would lock its smartest people away in a secure location for a week or so and have them play out every conceivable scenario and subplot, detailing plans for all eventualities. Then, when the time came, it would be prepared for anything.

Administration officials don't appear to have done that. But if nothing else, they should have been able to predict that the public option -- a Medicare-like program from which Americans could chose to get their health insurance -- would eventually become the ideological flashpoint of the entire debate. You didn't have to be a genius to see that coming.

Though it took a while, the public option is now at the center of the discussion. Among other things, this means that progressives are finally getting to participate, beyond defending the administration against the ridiculous claims of critics. People who don't like the public option are hurrying to declare it dead, but it may yet have a chance.

Congress reconvenes soon, and the ugliest parts of this debate -- the lies about death panels and covering undocumented immigrants, the accusations of Nazism, the assault-weapon-toting nutballs -- will fade into the background. The next phase is the actual process of legislation (just as ugly, perhaps, in its own way). There are a number of different scenarios, so it's worth going through step by step to see where this whole mess might actually end up.

First, each house of Congress must come up with, and vote on, a single bill. In the House, where members seem to have their act together, they've already got one bill, jointly written by the three committees with relevant jurisdiction. The House bill is a strong one: It imposes new regulations to curb insurance-company abuses, sets up a health-insurance exchange for those who don't have coverage through their employer, and mandates that everyone get insurance while providing subsidies for those with low incomes. It also includes a public option. (There's a summary of the bill here.)

In the Senate, we're still waiting for Finance Committee Chair Max Baucus to complete the bizarre exercise of devising a "bipartisan" bill through negotiations with Republicans who have made quite clear they won't support health reform. Whatever his committee produces will have to be combined with a bill already passed out of the Committee on Health, Education, Labor and Pensions, which closely resembles the House bill. Baucus' bill is guaranteed not to include the public option. And because it is being written in order to please Republicans, his bill will probably be worse in many other ways as well -- stingier subsidies, for instance. When the two Senate bills are put together, chances are that the final version will look more like the Baucus bill.

We then move to the first round of voting. Because the House is a body where something like representative democracy exists, its version of the bill will pass easily. Precisely zero Republicans will vote for it, and more than a few "Blue Dog" conservative Democrats will join them in opposition, but the comfortable majority the Democrats enjoy will be more than enough to secure passage. In the Senate, Republicans will filibuster the bill, no matter what it does or doesn't contain. There will be two votes, one to end the filibuster ("cloture," which requires 60 votes) and, if that is successful, another vote on the bill itself.

Because Democrats have 60 seats, defeating the Republican filibuster requires every one of them to vote with their party. This assumes that both Robert Byrd and Ted Kennedy will be available to vote for cloture, which is by no means a sure thing. Democrats could also give themselves a little wiggle room by getting a Republican or two to vote with them. There are only two Republican senators -- Olympia Snowe and Susan Collins, two moderates from Maine -- whom Democrats have even the slightest chance of persuading to vote for cloture. Some others, particularly Charles Grassley of Iowa, are pretending they might vote for reform. They won't.

In predicting whether Democrats could hold all their members, or grab a couple of Republicans, for that first round of voting, let's remember that there is a substantial area of consensus on health-care reform, particularly around new restrictions on insurance-company abuses like denials of coverage for pre-existing conditions, lifetime coverage limits, and kicking people off their policy when they get sick. If the Senate bill is stripped down to remove the more controversial provisions like the public option, it could overcome the Republican filibuster without too much trouble. Not because Republicans will vote for it but because conservative Democrats would have no reason not to.

So, let's say Senate Democrats do overcome that filibuster. On the actual vote, the bill should easily get 51 ayes. Then, the strong House bill and the weak Senate bill go to a conference committee, where representatives appointed by Nancy Pelosi and Harry Reid hash out the differences, come up with a compromise, and send the compromise back to both houses for one more round of voting.

Here's what we're left with. In the first round, the House will pass a bill with a public option, and the Senate -- if it passes a bill -- will pass one without a public option. If the bill that emerges from the conference committee doesn't contain the public option, some House Democrats will refuse to support it. In fact, 60 progressive representatives, more than enough to defeat a bill, recently signed a letter to the White House pledging to do just that. But if the conference report does contain the public option, conservative Senate Democrats have said they'll oppose it. We thus have a catch-22: Health-care reform can't pass the House without a public option but can't pass the Senate with a public option. Or so it appears.

We now arrive at the crux of the matter, which is the fact that the word "oppose" has two potential meanings, at least in the United States Senate. You can oppose a bill by voting against it, or you can oppose a bill by filibustering it, keeping it from ever coming to a vote. It's perfectly possible to vote to end the filibuster and then vote "nay."

The question for the conservative Democrats in the Senate is this: Do they hate the public option so much that, were it included, they would vote against a comprehensive health-reform bill -- that did a lot of things they support -- in disgust? Do they hate it so much that they would not only vote against it but would actually join a Republican filibuster to prevent the bill from ever coming to a vote?

This is the only path the public option has left: The bill emerges from the conference committee, and conservative Democrats make the decision that they will not join with anti-reform Republicans to cripple Barack Obama's presidency, deny 47 million Americans the chance at getting coverage, allow insurance companies to continue kicking people off their coverage when they get sick, and destroy the chances of reforming this nightmare of a system for another generation.

For reform to succeed, someone has to give. The stereotype of United States senators says that they are a bunch of prima donnas who care more about whether their rings are kissed than whether their actions actually help or harm the Americans over whose lives they have such power. We'll find out soon enough.

About the Author

Paul Waldman is a weekly columnist and senior writer for The American Prospect. He also writes for the Plum Line blog at The Washington Post and The Week and is the author of Being Right is Not Enough: What Progressives Must Learn From Conservative Success.